Hybrid conflict risks and Arctic Law
Russia’s war against Ukraine has changed the security situation also in the Arctic. Sweden and Finland are on course to join NATO and the threat of armed conflict in Northern Europe is higher than at any other moment since the end of the First Cold War. But not all threats to peace today come in the classical forms of armed conflicts. The last decade in particular has seen a dramatic increase in hybrid conflicts, which can range from attempts to sow discord in other countries to attacks which fall just short of war. The Arctic is not immune to this threat and the question has to be asked whether international Arctic law can contribute a certain level of protection against hybrid warfare. In the following paragraphs, using the situation regarding Svalbard as one example, it will be shown that international law does have shortcomings when it comes to these hybrid threats. It will be shown that the lex lata can actually be used by the Putin government to push a wedge between Norway and the European Union.
There is a lot of discussion about the increasing interest in the Arctic as climate change makes the region, which is home to four million residents, including many indigenous persons who can trace the histories of their respective peoples in the region for thousands of years, more accessible. These discussions often focus on the increasing accessibility of the Arctic Ocean, for example as a shortcut between Europe and Asia, and on resource extraction. From outside the Arctic, this growing interest is often pictured as a prelude to armed conflict in the far north. There have been armed conflicts in the Arctic, for example as part of World War II, and the Arctic played an important role in the Cold War - but there is a limited likelihood for actual armed conflict in the Arctic today, despite forward deployments of forces within Russia and within the North Atlantic Treaty Organization (NATO). The reason for this is a system of governance which actually avoided talking about security for decades. The Arctic is governed by nation-states. National sovereignty is the default for large parts of the Arctic - while the heart of the Arctic, the central part of the Arctic Ocean, is beyond the jurisdiction of nation-states. There is agreement among the Arctic states, in particular among the five coastal states of the Arctic Ocean, as outlined in the Ilulissat Declaration of 2008, that the Arctic Ocean is governed by the international law of the sea. This includes both the United Nations Convention on the Law of the Sea (UNCLOS) and customary international law, hence this is a statement that is also supported by the United States, which is not a party to UNCLOS. There is therefore no need for an all-encompassing Arctic Treaty, parallel to the Antarctic Treaty. Over the last years, however, there has been more and more international law related to the Arctic which has actually been ‘made in the Arctic’, such as the Agreement to Prevent Unregulated High Seas Fisheries in the Arctic Ocean, also known as the Central Arctic Ocean Fisheries Agreement (CAOFA), and the treaties which have been created within the framework provided by the Arctic Council. The overwhelming majority of international legal rules which apply in the Arctic, however, are not made exclusively in the Arctic. Whether they are global, like UNCLOS, or at least regional, like the Convention on Long-Range Transboundary Air Pollution (CLRTAP). What they have in common is that non-Arctic states also had a say in the creation of these norms. In the case of CAOFA, non-Arctic actors joined later, but that is the exception. The more common approach is that norms which have been co-created with non-Arctic states apply to the Arctic. This is not new. In fact, one of the treaties which can be a source of future conflicts was created in this way, the 1920 Svalbard Treaty, back then referred to as the Spitsbergen Treaty.
Svalbard is part of Norway and Norway has full sovereignty over the archipelago. Exercising this sovereignty, Norway accepted a number of obligations which have the practical effect of not all Norwegian laws applying to Svalbard and other states have some limited rights in the region, in exchange for full acceptance of Norwegian sovereignty. The legal basis for this is the 1920 Svalbard Treaty which gives states parties access to the islands, including for the exploitation of natural resources. The fact that this treaty is a century old is slowly leading to problems, especially when it comes to the maritime space surrounding Svalbard. These problems have been predictable for decades and so far there have been attempts to avoid them. For example did Norway not declare an Exclusive Economic Zone (a legal concept which was created decades after the Svalbard Treaty) but only a Fisheries Protection Zone (FPZ)
Russia has repeatedly challenged Norway’s sovereignty and rights with regard to Svalbard. That the EU have fisheries interests in the Arctic should not be over-interpreted. Norway is a trusted partner in the European Economic Area and a NATO member. More importantly from an Arctic perspective, Norway is a Nordic country with open borders to Sweden and Finland, both of which, like Norway (and, to a smaller part, Russia) govern Sápmi, the homeland of the indigenous Sámi people. Even creating a situation which could be understood as anything less than full support for the non-EU but NATO member Norway should be avoided by the European Union. Of course, the EU will distinguish itself from NATO and show its independence as a strategic entity. However, with regard to governments which do not honour the values shared by all other Arctic states, and by the European Union and the Nordic countries in particular - freedom, democracy, respect for human rights and for the rule of law, as well as a commitment to sustainability and climate justice, Europe should speak with one voice. Seeking consensus with Arctic partners is one way to do so. In the context of Russia’s war of aggression, Norway and the European partners from the EU stand closely together in the support of Ukraine. This support can increase the likelihood of hybrid attacks also in Northern Europe. Drone sightings close to security-relevant infrastructure across Northern Europe have been a reason for concern in recent weeks. This includes Norway’s oil infrastructure.
These events can be considered a reminder of the need for regional cooperation. But International Arctic law might not be equipped to counter all hybrid threats, but the idea of the exchange of knowledge which is inherent in Arctic cooperation is a tool which can be used to counter misinformation. The value content of international Arctic law is limited as it is not concerned so much with issues such as human rights but more with technical aspects, which are less sensitive from a political perspective than issues like human rights. The use of international law as a governance tool in the Arctic, however, has the benefit of advancing the commitment of all Arctic states to the rule of law as the states of the Arctic are in principle committed to Arctic governance based on the rule of law, despite violations of international law elsewhere. In the Arctic, international law is fulfilling its core function of preserving international peace between states. International law is not a perfect tool to solve all problems but in the Arctic, it plays an important contribution to preventing military conflict, even though the Arctic Council has explicitly refrained from talking about hard security since its inception due to a footnote in the Ottawa Declaration which established the Arctic Council.
Since the escalation in the spring of 2022, the Arctic Council has been effectively dormant anyway and security cooperation in the NATO and EU frameworks has become more important in the face of Russian aggression. Hybrid threats which have long been an issue of concern in the region, remain a topic of interest. The exclusion of security issues in a footnote in a non-binding text that was written during the optimistic years of the 1990s still has ramifications today. The seven Western Arctic (A7) states are cooperating on security issues, including on hybrid threats, but not within the framework of the Arctic Council. While it is possible that International Arctic Law can be utilized among the A7, this is not yet the case. However, information exchange mechanisms that have been developed in the framework of international Arctic governance might prove useful in the future to combat fake news and hybrid threats. If this will become necessary and which responses will be possible remains to be seen.